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April 26, 2015

Lawless rule of law

Günal Kurşun

Yesterday, the İstanbul 32nd Court of First Instance ordered the release of Hidayet Karaca, CEO of the Samanyolu Broadcasting Group, and some 63 police officers who had been arrested previously.
However, it is alleged that İstanbul Chief Public Prosecutor Hadi Salihoğlu held an emergency meeting at the İstanbul Courthouse on the same day to block the execution of the court decision by closing down access to the National Judiciary Network Project (UYAP). If a court decision is not entered into the network system, it is not possible for it to be executed. Now, debate about the case and pressure on the prosecutor who is responsible for executing the court decisions continues, and we are still hoping that all those who have been arrested can be released soon.

This issue clearly shows the extreme pressure on the judiciary. I read the court decision, and the rationale is the illegality of the arrests of Karaca and the others. The court clearly states that they have to be released immediately, but since it is not in accordance with the Justice and Development Party (AKP)'s policy, the chief public prosecutor is trying to undermine the decision by putting pressure on prosecutors or unplugging the network system. This ridiculous action can only create a belief that there is no impartial and independent judiciary in Turkey. It is out of the question that a court decision could not be executed when there is true rule of law. Previously, Karaca's and the police officers' lawyers have given hundreds of statements to several courts and objected to the arrests. None of these courts ruled that the arrests were illegal. They all knew that the judicial action taken to arrest Karaca and the others was illegal, but they failed to determine that it was so in their rulings.

The separation of powers is an aspect prescribed by the Constitution in Turkey and the executive branch is not allowed to intervene in the judiciary. It is also explicitly stated in Article 2 of the Constitution. This famous rule is not being applied in Turkey, especially in the last two years. The political party that is in charge has openly declared several times that it is against any kind of thought which doesn't support their party policy. For this reason, they do not hesitate to intervene in the judiciary or try to influence it by oppressing members of judiciary. All judges and public prosecutors are under severe pressure now.

In recent years, the AKP made many amendments to the Code on Criminal Procedure (CMK), and this large number of amendments created gaps between the articles. There had been Criminal Courts of Peace and one could bring an objection regarding the decisions of these Criminal Courts of Peace to the Courts of First Instance. The AKP amended the law more than 40 times after it entered into force in 2005, and established Criminal Judges of Peace who would serve instead of the Criminal Courts of Peace in 2014. There is a debate now as to which court is entitled to review objections. Whatever the result is, we see again that making this many amendments in a short time period harms the legal field.

President Recep Tayyip Erdoğan confessed previously why these Criminal Judges of Peace were established. He said: “The tools of the Supreme Board of Judges and Prosecutors [HSYK] are very limited. Now the judicial process regarding this ‘parallel structure' is starting. Criminal Judges of Peace will follow this process.” We see clearly that it is a tool in the government's hands to control the opposition by suing them and bringing criminal proceedings against them.

The Greek philosopher Socrates said, “The only true wisdom is in knowing you know nothing.” The AKP policy shows that they don't know anything about criminal law but they are not aware of this.

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